Informed consent is a concept at the core of both liberal democracy and the ethical practice of medicine. That is just one reason why a new report that, between 2006 and 2010, at least 148 women were sterilized illegally in California prisons should deeply disturb us.
The report found the inmates were given tubal ligations without the prison administrators bothering to get the case by case authorization for the procedures, required by law, from a state board. The point of this requirement is to have state officials outside of the prison review whether a proposed sterilization is genuinely consensual. (At least one woman has complained that she was coerced by prison officials into having the procedure).
Judging from the comments being made on even many liberal internet sites regarding this story, it seems a refresher course in one of the darker sides of American history is in order (A typical reaction: “So ridiculous making this procedure so difficult. Every woman who walks in the door of a prison should be encouraged with times cuts and subsidies to get sterilized.”)
For much of the 20th century, people –usually women – in American prisons and mental institutions were subjected to forced sterilization. In an infamous 1927 Supreme Court opinion, Oliver Wendell Holmes enthusiastically approved of this practice, saying of the coerced tubal ligation of a teenaged girl that “three generations of imbeciles are enough.” (The evidence for the girl’s “imbecility” consisted of the fact that she had had a child out of wedlock after being raped by a relative).
The practice of legal forced sterilization was an outgrowth of the eugenics movement – the idea that the genetic quality of human populations should be improved by selective breeding practices, whereby society’s elites would curtail unnecessary reproduction by the “feeble-minded” (a term that in the early decades of the 20th century was used as a catch-all for what the elites deemed socially undesirable people).
The eugenics movement in the United States was largely discredited by the fact that eugenics was central to both the theory and practice of Nazism. Nevertheless, California in particular has a long and sordid history of forced sterilization: sterilizations were forced on prisoners as late as the mid-1960s, in part because California’s long-time attorney general was a vociferous supporter of the practice, and it wasn’t formally outlawed until 1979.
The law that was ignored in the case of the 148 prisoners over the past few years was designed in the shadow of that history. It is a product of the understanding that forcibly institutionalized people are especially vulnerable to having their “consent” extracted from them, in ways that would never work if they were free persons.
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It’s an unfortunate side effect of America’s almost bottomless urge to lock people up that the legal rights of such people are so casually tossed aside. An incarcerated woman who is coerced, whether explicitly or in more subtle ways, into being sterilized, has had a crime committed against her, just as surely as this would be a crime if it were committed against a free woman.
This is obvious if we force ourselves to remember what the Nazis were at such pains to deny: that so-called “social undesirables”—in this case, prison inmates—are still human beings. To forget that is both a legal and a moral crime.